Is Makeup About to Get Ugly? Plaintiffs’ Counsel May See the High Promises of Some Cosmetics Advertisements as a Source of Litigation

While a study hardly seems necessary to confirm it, an article published in the Journal of Global Fashion Marketing reports that of 289 cosmetics ads surveyed, only 18% could be viewed as generally trustworthy. While some may view this finding to be mere common sense, others – particularly plaintiffs’ counsel looking for potential class action claims – may view cosmetics as the next frontier after food labeling. After all, for an attorney with a “natural claim” lawsuit or similar complaint already drafted, the possibility of repurposing a ready-made legal formula may be highly appealing. Might cosmetics claims become the target of a new wave of false advertising litigation, akin to the “food wars”?

Although the cosmetics sector has not yet seen anything like the onslaught of litigation visited upon the food sector, there are signs that cosmetics may be next. For example, in 2014, putative class allegations were filed alleging that Avalon Organics violated state consumer protection and false advertising laws by implying that its “Organics” named product line, including “Natural Mineral Sunscreen” and various shampoos and moisturizers were “either completely or at least mostly comprised of organic ingredients.” Brown v. Hain Celestial Group, Inc. No. C 11-03082, 2014 WL 556732 (N.D. Cal. Feb. 10, 2014). More recently, in March 2015, plaintiffs brought a proposed class action against G.M. Collin accusing this beauty products manufacturer of deceptive and “hoax” marketing a line of anti-aging skin care products that claim to “reverse the signs of aging by improving the vitality of skin cells and repair DNA.” Eliza Reid, et al. v. GMC Skin Care USA, Inc. No. 8:15-cv-00277 (N.D.N.Y.). Likewise, another March 2015 lawsuit alleged that certain Aveeno bran sunscreen products were mislabeled as “naturally sourced” when they reportedly contain mostly synthetic ingredients. Langan v. Johnson & Johnson Consumer Cos., Inc. [1] No. 3:13-cv-01470 (D. Conn.). In July 2015, four putative class actions were brought against Johnson & Johnson alleging that one of its baby lotions was falsely marketed as “clinically proven” to help babies sleep better.

Cosmetics makers face pressure to offer ever more innovative options so as to stand out in the crowded field of offerings. When the competition offers “revolutionary” skin resurfacing, “medically proven blood vessel dilating” lip plumper, and “light-reflecting pearl” powder, the temptation to go big in the claims department may be high. In-house and outside counsel should consider the current litigation climate when approving and reviewing claims, and ensure that substantiation can stand up now, and not just rely on the risk levels of the past.

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Crowell & Moring is a full-service, international law firm that represents a broad spectrum of clients in the retail and consumer product industries, including wholesale and specialty retailers, department stores, and big-box retailers, apparel, cosmetics, food and beverage, consumer electronics and other consumer products companies, as well as investors in these sectors. Our clients call upon us, time and again, to help them navigate the complex legal and regulatory regimes, both domestically and internationally, applicable to the design and promotion of products and services, and to assist them in taking innovative and proactive measures to protect their business from the array of challenges before them. Our Retail & Consumer Products Law Observer blog features legal insight and thought-leadership affecting the industry.